Russell v Fox Print Services LLP & Anor

An Employment Tribunal may find that a claimant was not disabled at the material date where contemporaneous evidence and the medical prognosis support that conclusion. Later medical evidence may properly be treated with caution where it depends on hindsight or on consequences arising after that date.

A deposit order requires adequate reasons showing why the claim has little reasonable prospect of success. Where the available material is limited, factual disputes require oral evidence, and the stated reasons do not reveal the tribunal's reasoning, the order cannot stand.

The claimant appealed two orders made at a pre-hearing review. The Employment Tribunal held that she was not disabled within section 6 of the Equality Act 2010 on the date of her dismissal, and struck out her disability-discrimination complaints.

It also ordered a £200 deposit in respect of her automatically unfair dismissal complaint. The complaint concerned absence to deal with her terminally ill father and section 57(1)(a) of the Employment Rights Act 1996.

The appeal challenged the disability finding, including the treatment of psychiatric evidence, and the adequacy of the reasons for the deposit order.

1. The appeal was dismissed on the disability issues. The Employment Tribunal had correctly directed itself on disability and was entitled to conclude that the impairment which began on 28 November 2011 was not, at 13 January 2012, likely to last 12 months or for the claimant's life.
2. The Tribunal gave sufficient reasons for preferring the claimant's contemporaneous health questionnaire, ET1 and witness statement to the suggestion in a later psychiatric report that stress in July 2011 was the first manifestation of the later condition. The case did not concern a choice between conflicting expert witnesses. Its reasons made clear why it rejected that suggestion, meeting the standard in Meek.
3. The Tribunal was also entitled to regard the later medical clarification as affected by hindsight. It took account of the effect of dismissal, financial pressure and subsequent grief, matters which could not be assessed as at the operative date. On the evidence then available, treatment was expected to resolve the depressive episode within three months. The Tribunal therefore applied the correct approach identified in SCA Packaging Ltd v Boyle.
4. The appeal against the deposit order was allowed. The order was not Meek-compliant. There had been no oral evidence or cross-examination, little documentation beyond the dismissal letter, and no adequate explanation for the conclusion that the unfair-dismissal complaint had little reasonable prospect of success. The dismissal letter admitted of more than one interpretation and the reason for dismissal required determination at a full hearing.
5. The EAT declined to give general guidance on section 57(1)(a) of the Employment Rights Act 1996 in the absence of findings of fact. The £200 deposit order was quashed; the disability-discrimination claims remained dismissed.

• Employment Appeal Tribunal: appeal allowed on the deposit-order grounds and dismissed on the disability grounds.
• Employment Tribunal: at a pre-hearing review on 10 October 2012, held that the claimant was not disabled under section 6 of the Equality Act 2010, struck out the disability-discrimination complaints, and made a £200 deposit order concerning the unfair-dismissal complaint.